GENERAL TERMS AND CONDITIONS

Version in force since March 15th, 2020

PREAMBLE


Happydemics is a French simplified joint stock company (société par actions simplifiée) with a share capital of € 1,947.70 and registered offices at 73 rue de la Plaine, 75020 Paris (France), incorporated at the Companies' House under number 810 129 478 (“Happydemics” or “Provider”). Happydemics provides questionnaire digital marketing studies which includes the access to a SaaS platform (the «Services »).

The customer, as identified in the order form (defined below), is interested by the Services and wishes to order a study or a pack comprising several studies (the « Customer »).

Happydemics and the Customer are referred to individually or collectively as the "Party" or “Parties”

The Customer acknowledges having received and/or obtained from Happydemics all the necessary information in order to verify the adequacy of the Services to its proper needs.

These general terms and conditions (the « General Terms and Conditions») govern, together with the specific terms and conditions or any purchase order executed by the Customer (the "Purchase Order"), the contractual relationship between Happydemics and the Customer and shall prevail over any other document such as any general terms and conditions of purchase of the Customer, advertising or marketing document and together form (the «Agreement»).

DEFINITIONS

The terms beginning with a capital letter are either the definition given to them directly in this text, including the Preamble, or the following definitions:

Assistance - Means the services of assistance to the use of the platform and the accompaniment provided by Happydemics to the Customer and as described in article 6.

Order Form - Means the document identifying the Customer and specifying the type of service offer chosen or the details of the Study to be carried out and signed by the Customer.

Study Response - Means the document describing the Study to be performed in the case of a Pack order.

Respondent Data - Means the Respondents' response to the questionnaire developed and circulated by Happydemics.

Study - Means the deliverable including Respondent Data in the form of a statistical/video report produced by Happydemics.

Platform - Means the dashboard accessible in SaaS mode allowing the Customer to have access to the Studies and monitor the consumption of the Studies included in a Pack ordered and to define all or part of the Study criteria.

Pack - Means the participants identified and / or selected by Happydemics to respond to the questionnaire.

Respondent - Means the participants identified and / or selected by Happydemics to respond to the questionnaire.

User – Means the person placed under the responsibility of the Customer (employee, advertiser) benefiting from access to the Platform.

Purpose and Description of the Services

The purpose of this Agreement is to specify the terms and conditions under which Happydemics provides the Services namely: (i) the provision of the Studies, (ii) the access and use of the Platform; (iii) the hosting of Respondent Data submitted to Happydemics through the Platform, the Studies and the possibility of downloading the Studies and (iv) the Assistance.

Happydemics may also offer additional services (e.g. a report with analyses and recommendations, an oral presentation of reporting, a personalized video and dedicated support…) which will ordered through a separate Order Form subject to the General Terms.

CONTRACTUAL DOCUMENTS

The execution of the Order Form implies the full and complete acceptance of these General Terms.

The applicable General Terms are those in force at the time of the execution of the Order Form. In the event of a contradiction between the General Terms and the Order Form and/or the Study response, the order of precedence of shall be as follows: (i) Order Form; (ii) Study Response and the General Terms.

TERMS AND CONDITIONS FOR SUBSCRIBING TO SERVICES AND ORDERING STUDIES/PACKS

In order to benefit from the Services, the Customer executes and Order Form referring to the General Terms.

The Order Form contains in particular the following elements:

  • Customer identification
  • The name of the Study ordered or the Pack chosen
  • The type of the Study ordered
  • The price

If the Customer orders a Study, the Order Form also includes the Study's criteria, such as the number of the Respondents, their age group, their location and the time period for carrying out the Study (the latter being indicative). In the event of the purchase of a Pack, the Study criteria are defined in the Study Response relating to each Study.

Each Study ordered is deducted from the Pack purchased by the Customer. The Customer can verify the number of Studies remaining in his Pack directly on the Platform.

CARRYING OUT OF THE STUDIES

The Studies are carried out in accordance with Happydemics' methodology as described on its website and explained during meetings with the Customer, if any. If the Customer requests that the Respondents meet more than three criteria, Happydemics reserves the right to charge additional fees and adjust the Study's delivery date in order to guarantee the number of Respondents.

All the deadlines indicated or provided, including the deadlines for delivering the Study are given for information purposes only. Once finalized, the Studies are made available to the Customer and are accessible and downloadable from the Platform.

Happydemics will be deemed to have delivered the Studies and the Customer to have accepted them when the Customer has been notified the availability of the Study on the Platform.

TERMS OF ACCESS TO THE PLATFORM

Users access the Platform from the Customer’s computers and connections using the identifiers created by the Customer when registering and assigned to each User (the “Logins”) within the limit of five (5) Users per Customer. Logins are personal and confidential.

The Customer is responsible for the use of the Logins. The Customer will ensure that no unauthorized person by Happydemics has access to the Platform. In the event of loss or theft of one of the Logins, the Customer must use the password reset procedure accessible on the Platform which sends an email to its email address giving a link to create a new password. More generally, the Customer is responsible for the security of its information system and in particular its computers.

The Customer is responsible, as provided under article 1204 of the French Civil Code, for compliance by the Users with this Agreement.

Assistance and support

The Assistance provided by Happydemics consists of answering Users’ questions on the use of the different functionalities of the Platform. This Assistance is available Monday to Friday, from 10:00 am to 7:00 pm, with a maximum of 1 hour per month. All assistance requests are made by sending an email to support@happydemics.com.

For all Order Form which include the “Premium” offer, the Customer can exchange with Happydemics to finalize the questionnaire to carry out the Study. This support is provided in the same conditions of the Assistance in the limit of 1 hour per Study.

Any Service of a duration longer than that specified above may be invoiced on the basis of the time spent at the day/man rate specified in the Order Form for the Services. Happydemics will inform the Customer if its team exceed this threshold before invoicing additional services.

Quality - and availability of the Platform

The Platform is accessible 24 hours a day, 7 days a week, including Sunday and public holidays except during maintenance.

The Customer is aware of the technical hazards inherent to the Internet, and of the interruptions in access that may result from it. Happydemics cannot guarantee the Platform will be accessible and available at all times, being executed remotely via Internet, which the Customer acknowledges.

Access to the Platform may occasionally be suspended due to unavailability or slowdowns related to maintenance operations necessary for the proper performance of the servers on which the Platform is hosted. Happydemics will make its best efforts to inform the Customer in advance of any planned unavailability of the Platform.

Maintenance operations carried out directly by Happydemics generally take place outside working days and hours, except in special situations, in particular in case of a major incident or emergency.

In the event of an unavailability or error of the Platform, the identified Users can report this to Happydemics at the times and conditions provided for Assistance. In case of notification by telephone, this notification must be confirmed by email as soon as possible.

Happydemics undertakes to use its best efforts to correct any error and ensure that the Platform functions correctly.

Right to use

Happydemics grants the Customer a personal, non-exclusive, non-transferrable right to use the Services during the term of the Agreement and for the entire world.

The right of use means the right to access the Platform, in SaaS mode via an Internet connection and to reproduce, distribute, and more generally use the Studies for marketing research purposes for an internal use to the exclusion of any other purpose and in accordance with the present Term and Conditions.

The Customer may not under any circumstances make the Services available to a third-party, and is strictly prohibited from any use, in particular any adaptation, modification, translation, arrangement, decompiling of the Platform and the Studies, without this list being exhaustive.

In the event of modification of all or part of the Studies, the Customer undertakes to remove any logo or any identification sign of Happydemics appearing on the Study.

In the event of non-compliance by the Customer with these provisions, Happydemics may at its sole discretion suspend all the Services or terminate this Agreement within the conditions set out in article 13 without prejudice to any claim for damages.

Personal Data

Each of the Parties reciprocally undertakes to comply with the regulations in force regarding personal data (“Personal Data”). For the purposes of this article, the terms “Personal Data”, “Processing”, “Person Concerned”, “Data Controller” and “Sub-Contractor” have the meaning given by the French Data Protection Act No. 78-17 of 6 January 1978 as amended in 2004, and by the European Regulation on the protection of personal data (the “Data Privacy Regulation”).

Given the nature of the Services and the purpose of Services, Happydemics will collect Respondent Data from the Respondents on social networks and/or other websites or applications partners of Happydemics, including via audience pixels or targeting cookies. The Respondents Data is anonymized so that the Studies do not contain any data allowing the direct identification of Respondents.

Within the framework of the Services, Happydemics acts as co-responsible / jointly responsible for the Processing with the Customer for the Respondent Data. The Processing of Personal Data carried out by Happydemics is described in the appendix of the present document. In addition, Happydemics treats the Personal Data of the Users as Data Controller and informs them via its policy of confidentiality.

In accordance with the Data Privacy Regulation, Happydemics undertakes to:

  • Ensure that persons authorized to process Personal Data are committed to confidentiality obligations or are subject to an appropriate legal obligation of confidentiality;
  • Implement all necessary measures to meet the obligations of security and integrity of Personal Data and their processing,
  • Reasonably assist the Customer in ensuring compliance with security obligations, taking into account the nature of the processing and the information available;
  • To make available to the Customer within a reasonable period of time all information necessary to demonstrate compliance with the obligations under this Article and to enable an annual audit, including inspections, to be carried out by the Customer or another auditor appointed by the Customer on 30 days’ notice and to assist in such audits, it being understood that any audit or penetration test will require prior written agreement on its terms and scope;
  • Notify the Customer if it receives a request for access or modification or an objection from a Respondent;
  • Inform the Customer as soon as possible in the event of a breach of Personal Data due to a proven security breach;
  • Cooperate in a reasonable manner with the French Data Privacy Authority if necessary;
  • Cease all processing of Personal Data upon termination or expiration of the Agreement.

All Personal Data used within the framework of the Study are deleted after thirty (30) days.

These provisions set out herein shall apply mutatis mutandis to the Customer if the Customer qualifies as joint processor for the processing.

The execution of an Order Form implies acceptance by the Customer of the subcontractors listed in the appendix. In the event of a change in all or part of this list, Happydemics undertakes to inform the Customer which can address objections in writing within five (5) days of receipt of the information. Failing this, the Customer will be deemed to have accepted said change.

Happydemics is in charge of informing the Respondents about the conditions of the Processing of their Data and of following up the requests that the Persons concerned submit in order to exercise their rights (access, deletion…).

Confidentiality

Each Party undertakes to (i) keep confidential all confidential information, including Personal Data, received from the other Party, including (ii) not to disclose the other Party's confidential information to any third party, other than employees or subcontractors who need to know it; and (iii) to use the other Party's confidential information only for the purpose of exercising its rights and performing its obligations under the Agreement.

Notwithstanding the above, neither Party shall have any obligation whatsoever with respect to information that (i) has entered or would enter into the public domain independently of fault by the receiving Party, (ii) is independently developed by the receiving Party, (iii) is known to the receiving Party before it is disclosed by the other Party, (iv) would lawfully be received from a third party other than through breach of confidentiality, or (v) required to be disclosed under the law or by a court decision (in which case they should only be disclosed to the extent required and after having notified in writing the Party that provided them).

The Parties' obligations regarding confidential information shall survive for the duration of the Agreement and as long as, after its termination, the information concerned remains confidential to the disclosing Party and, in any event, for a period of 5 years after the termination of the Agreement.

The Parties also undertake to ensure the compliance of provisions by their employees staff and by any subcontractor, agent or third party who may be involved in any way whatsoever in the context of the Agreement.

Term

Unless otherwise specified in the Order Form, this Agreement shall be effective upon execution of an Order Form and shall remain in force for the entire period of validity of the Pack as indicated in the Order Form and in any event for a period of twelve (12) months after execution of the Order Form.

The Services cannot be cancelled once the Order Form has been executed by the Customer.

Happydemics reserves the right to delete the Customer's User account as well as all Customer Data and Studies delivered if the Customer does not access the Platform or order a Study or Pack during one (1) year from the delivery of the last Study, subject to prior information of the Customer, unless the Customer subscribes to a specific option.

Prices and payment terms

The price of the Services is indicated in the Order Form and is binding for the Pack and or Study concerned.

The Services ordered are invoiced upon execution of the Order Form. When the Customer purchases a Pack, it benefits in principle from more favorable financial conditions for each Study.

In the case of a Pack, the Studies must be launched by the Customer within one (1) year following the execution of the relevant Order Form, unless a different deadline is indicated in such Order Form. In case of non-consumption of all the Studies of the Pack at the end of the agreed period, Happydemics reserves the right to provide the Study but to invoice an additional amount corresponding to the difference with the then current public price or invoice the totality of non-consumed Studies if they have not been paid in advance.

All Happydemics invoices are payable within thirty (30) days of the invoice date. The sums due are paid by wire transfer to the bank details indicated on the invoice. All amounts paid are nonrefundable.

Consequence of a delay/default in payment

In accordance with article L.441-10 of the Commercial Code, in the event of late payment by the Customer of any sum due for any reason whatsoever within the agreed due date, Happydemics reserves the right, without prior notice, to charge the Customer late payment interest calculated at a sum equal to the higher of five (5) times the legal interest rate or 3% of the sums due calculated on a daily basis from the due date until the date of full payment plus applicable VAT. If the late payment interest rate defined above is lower than the minimum rate provided for in Article L441-10 of the French Commercial Code, the late payment surcharge will be calculated on this minimum rate. Interest is capitalized in accordance with the provisions of Article 1343-2 of the French Civil Code.

In addition, Happydemics reserves the right to charge on top a fixed compensation for collection costs of 40 € and the actual costs if collection costs incurred are above this fixed compensation.

Furthermore, in case of non-payment of an invoice on the due date and without prejudice to a possible claim for damages, Happydemics reserves the right to suspend the performance of the Services and in particular the access to the Platform and/or to terminate this Agreement after five (5) days prior notice, without triggering Happydemics' liability.

In the event of early termination of this Agreement, any sum due by the Customer will be invoiced and will be immediately payable.

WARRANTIES AND LIABILITY

● General Provisions

Happydemics commitments under the Agreement are made under an obligation of means ('obligation de moyens') except for the number of Respondents.

Happydemics will devote the time and resources necessary to fulfill and perform the Services. Happydemics undertakes to provide the Services with the tools and means at its disposal, and to bear all technical costs related to the effective realization of the Services except expenses incurred for any travel outside the Paris area.

Happydemics declares that it has the expertise and means necessary to perform the Services, and undertakes to perform the Services in accordance with the standards of the profession and the requirements of this Agreements.

● Guarantees of the Customer

For the performance of the Studies, the Customer authorizes Happydemics to use Customer's brands and logos as well as any element provided by the Customer or the Customer's client (notably when it is for example an agency requesting Studies for its own Customer), in particular in the questionnaires or to personalize the Studies. In this respect and to this end, the Customer grants a right to display and reproduce these elements and any other element provided, for the entire world, on any medium and by any process, for the duration of the protection provided for by the intellectual property conventions and texts applicable in France and abroad and their possible extensions.

The Customer is solely responsible for the quality, validity and relevance of the elements provided to Happydemics for the purposes hereof, whether these elements are the Customer's or those of his own customer. Customer also represent and warrants that it has all the rights and authorizations necessary to allow Happydemics to use the elements and contents. Consequently, Customer shall indemnity and hold Happydemics harmless of all consequences and liability in case of non-compliance with this guarantee, especially in the case of a request/claim by a third party.

● Indemnification

Happydemics shall indemnify and hold the Customer harmless of direct damages resulting from any complaint and/or claim by a third party invoking an infringement of intellectual property rights by the Services, provided that the Customer has notified the complaint/claim to Happydemics within ten (10) working days from receipt of such a complaint or being made aware of it.

This indemnification obligation will not apply to any request or claim not notified within the time limit below or resulting from : (a) any damage, alteration, modification or addition made to all or part of a Service which has not been made or authorized by Happydemics; (b) any combination by the Customer / a User of all or part of a Study or use of the Platform with information, software, hardware or other technology not provided or not recommended by the Service Provider; (c) any use by the Customer / a User of all or part of a Study or more generally of the Services provided in a manner not authorized by this Agreement; (d) any elements provided by the Customer (including but not limited to the Customer's trademarks and logo and (e) any request or action relating to the infringement of intellectual property rights which are not those that Happydemics has granted to the Customer through this Agreement.

● Liability

Happydemics' liability can only be triggered in the case of a proven default or negligence directly attributable to Happydemics and is limited to direct damages suffered by the Customer to the exclusion of any indirect damage of any nature whatsoever, such as in particular any loss of chance, loss of revenue or loss of profit.

The total liability of Happydemics under this Agreement on any grounds (except in cases of gross negligence or intentional fault) in connection with this Agreement shall in no circumstances exceed a sum equal to 50% of the total fees paid by Customer in the twelve (12) months immediately preceding the event which gave rise to the liability.

Nothing in this Agreement will limit or exclude Happydemics’ liability for death or personal injury, gross or willful misconduct or fraud.

The Parties acknowledge that the above limitations do not render ineffective the essential obligation they are consistent with the Contract’s objectives and have been discussed in good faith.

● Insurance

Each of the Parties represents that it is insured by a reputable insurance company for the consequences of its professional civil liability for any damage resulting from the performance of this Agreement and, more generally, from its activities. They each undertake to maintain this policy in force for the entire duration of this Agreement and to be able to provide an insurance certificate to the other Party upon request.

TERMINATION OF THIS AGREEMENT

If either Party breaches any provision of this Agreement, or such breach has not been cured within thirty (30) days after receipt of written notice thereof sent by registered mail with receipt acknowledgement, the non-breaching party shall have the right to terminate as of right this Agreement, without further prior notice. The Customer's failures referred to herein relate to the obligations (i) to pay and (ii) to use the Platform and the Studies and more generally the Services in accordance with this Agreement and applicable laws. The failures of Happydemics entitling the Customer to termination under the conditions above are: (i) failure to reach the number of Respondents three (3) times in a row or (ii) unavailability of the Platform for five (5) working days in a row.

In the event of termination of this Agreement, the Customer shall cease to use the Services, the Studies in progress upon termination will be continued until their completion but no new Order Form or Study Response may be launched or executed. In the event of termination of this Agreement due to Happydemics' default, Happydemics undertakes to pay as damages and interest a fixed and definitive compensation corresponding to the proportion of the Studies that have not been launched.

The fact that the Customer does not or no longer uses the Platform or that Client does not launch Studies, does not have the consequence of suspending this Agreement or of modifying the period of validity of the Pack ordered, the obligations of payment of the sums due under this Agreement remaining in full force and effect.

Compliance with Laws

Happydemics guarantees it complies with its social legislation in France. In this respect, Happydemics certifies that it has made the declarations required by the social protection bodies and that it has fulfilled the obligations indicated in articles L. 8221-3 and L. 8221-5 of the French Labor Code.

Upon execution of this Agreement and every six months at the request of the Customer, Happydemics will send the Customer the following information:

  • ● a certificate of provision of social declarations and payment of social security contributions and dues provided for in Article L. 243-15 of the Social Security Code issued by the social protection body responsible for the collection of contributions and dues, dated less than 6 months ago.
  • ● an original certificate of the Companies House (Kbis) dated less than three months.

When Happydemics employs foreign employees and subject to the work permit mentioned in article L.5221-2 of the Labor Code, it provides a list of names of foreign employees and subject to the work permit mentioned in article L.5221-2 of the Labor Code, this list mentioning, for each employee, his date of hiring, his nationality as well as the type and serial number of the title valid work permit. This list is drawn up on the basis of the single personnel register.

FORCE MAJEURE

Except for payment obligations, neither party hereto will be liable for defaults, delays or failure to comply with any of its obligations under this Agreement that is due to a cause or situation of force majeure as defined by the French courts and Article 1218 of the French Civil Code.

If the performance of this Agreement is significantly prevented for a continuous period of one (1) month due to an event qualified as force majeure, each of the Parties may terminate this Agreement immediately upon written notice sent by registered letter with acknowledgement of receipt to the other Party.

GENERAL PROVISIONS

Updating of the General Terms. Happydemics may modify and update the General Terms without notice. A notification will be made to the Customer by email. This Agreement can only be modified by way of an amendment signed by the Parties.

Commercial reference. Happydemics is authorized to use the name or trademarks of the Customer for the purpose of carrying out the Studies. In addition, Happydemics is authorized to mention the existence of this contractual relationship and to reproduce the name or brands of the Customer to promote its activities and this in compliance with the rules of use of the name and brands of the Customer transmitted if necessary.

Non-waiver Unless otherwise provided for herein, any failure by any Party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.

Unforeseeability The Parties, fully informed of their rights under Article 1195 of the Civil Code, expressly exclude the application to unforeseen circumstances, as defined in Article 1195 of the Civil Code, regardless of the circumstances beyond the Parties' control. The Parties agree to assume the risks relating to any change in circumstances unforeseeable at the time of execution of this Agreement that would make its performance excessively onerous for them, and expressly waive the right to request any renegotiation and/or judicial and/or non-judicial review of this Agreement on this account, unless expressly stipulated otherwise in this Agreement. The Parties also expressly exclude the application of Articles 1219 to 1223 of the Civil Code, which allow the judge to reduce the Parties' financial commitments or obligations in the event of a breach of their obligations.

Nullity / unenforceability. If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the Parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

Transfer, assignment and subcontracting. Happydemics may subcontract all or part of the Services to one or more subcontractors of its choice and duly selected by it or to transfer and or assign this Agreement or the rights and obligations arising from it to a third party at its sole discretion. In this case, these third parties will be bound by a commitment of confidentiality similar to that made by Happydemics hereunder and will have to comply with the same level of requirements as those required by the Customer from Happydemics.

Applicable law and jurisdiction. This Agreement shall be governed by and construed in accordance with French law. Any dispute arising out or in connection with this Agreement, not resolved amicably within thirty (30) days of receipt of a formal notice materialized by the conclusion of a settlement agreement, will be submitted to the exclusive jurisdiction of the Paris Commercial Court.

Appendix on the processing of personal data

Object and Purpose of the Processing

Performance of marketing studies for the purpose of :

  • • Adapting content to the interests of users of the Customer's service
  • • Adapting advertising to the interests of the users of the Customer's service
  • • Development of audience measurements

Duration of the Treatment

It corresponds to the duration of this Agreement

Categories of Persons concerned

  • • Respondents

Categories of Personal Data Processed

  • • Name
  • • First name
  • • used ID
  • • IP address
  • • Cookies
  • • History of page views
  • • History of videos watched
  • • History of "likes"

List of authorized Sub-processors:

Sub-processor Server localisation Processing
Mediasmart Mobile European Union Collection of display parameters and Respondent information
Success 4 Mobile SAS European Union Collection of display parameters and Respondent information
Hawk by tabmo European Union Collection of display parameters and Respondent information
Verizon Media European Union Collection of display parameters and Respondent information
Facebook Ireland Ltd European Union Collection of display parameters and Respondent information
Snap Inc. European Union Collection of display parameters and Respondent information